by Mariyam Naufa

In the recent judgment of the High Court in Re Aishath Zaeema¹, the High Court established a pivotal precedent that is set to have huge implications on the rights of children and other protected persons who lack the capacity to represent themselves at court proceedings.

The Court ruled that such individuals can be represented by a court-appointed litigation friend², appointed particularly to protect the interests of the child or the protected person at the court proceedings of the case.

Background

The case’s origin lies in the tragic circumstances of Mariyam Zaeema Moosa being left in a vegetative state due to severe brain damage she suffered while undergoing treatment at IGMH. Following the incident, Aishath Zaeema, Mariyam Zaeema Moosa’s sister and appellant at the High Court, filed an application for conservatorship at the Civil Court seeking to be appointed as Mariyam Zaeema Moosa’s conservator since Mariyam Zaeema Moosa was no longer able to manage her financial and personal affairs due to the brain damage she suffered.

The then judge presiding over the Civil Court proceedings, having observed that the case involves the interests of Mariyam Zaeema Moosa – a protected person under the Civil Procedure Act, directed Aishath Zaeema to first file a separate case at the Family Court to appoint a ‘guardian’ (Baladhuveriyaa) of Mariyam Zaeema Moosa before the case filed at the Civil Court can be proceeded with.

‘Protected Person’ is defined under the Civil Procedure Act as any person who, because of a physical or a mental incapacity, cannot conduct civil proceedings without being represented by a person appointed to represent their interests, i.e. a litigation friend. The question of whether Mariyam Zaeema Moosa – a person then in a vegetative state³, is a ‘protected person’ as defined under Section 429(u) of the Civil Procedure Act was undisputed.

However, the lawyers of Aishath Zaeema disputed the requirement to file a separate case at the Family Court to appoint a legal guardian of Mariyam Zaeema Moosa and maintained that the correct and proper procedure to be followed is for the Civil Court to appoint a litigation friend of Mariyam Zaeema Moosa pursuant to the procedures under the Civil Procedure Act. The Civil Court’s judge, however, disagreed with the position of Aishath Zaeema’s lawyers and gave notice to Aishath Zaeema to submit a ‘document’ – namely a decision of the Family Court deciding on who can be appointed as a legal guardian of Mariyam Zaeema Moosa pursuant to family law.

Aishath Zaeema appealed to the High Court against the decision of the Civil Court. Initially, the High Court at first rejected the appeal.⁴ However, the appeal was registered at the High Court when the rejection of the appeal was appealed to the Supreme Court, and the Supreme Court ordered the High Court to grant the leave.⁵ This process alone took about 3 months, and before the proceedings at the High Court could start, Mariyam Zaeema Moosa passed away.

At the High Court

The appeal before the High Court concerned the procedure to be followed when appointing a representative to represent the interests of incapacitated individuals at court proceedings of civil suits. Specifically, the Court needed to decide whether it is necessary to first file a separate application in a court with family law jurisdiction for the appointment of a guardian for that child or protected person as provided under family law prior to filing a civil claim on behalf of a child or protected person.

Per the applicable family law in place, namely the Family Act⁶ and Family Regulation⁷ guardianship of children is determined based on Shari’a principles (Sharuee Baladhuveriyaa). Where appointing a guardian in accordance with Shari’a principles is not possible, the family law allows for the appointment of a ‘legal guardian’ (Ganoonee Baladhuveriyaa). Notably, the Family Act and the Family Regulation expressly reserve guardianship of a child to the paternal kin of the child unless exceptional circumstances warrant otherwise. Even more notably, family law only provides for the appointment of guardianship of children and is silent on the issue of appointing a guardian of a protected person who has reached majority age.

A further issue before the High Court related to the interpretation of Sections 87 and 429(q) of the Civil Procedure Act. Section 87 of the Civil Procedure Act requires a legal guardian to be appointed as a litigation friend to represent protected persons and children that are parties to the civil suits, and Section 429(q) of the Act defines the meaning of a legal guardian for the purposes of the Act.

The Civil Court judge was of the view that those provisions of the Civil Procedure Act can be interpreted to mean that the procedure and requirements applicable under the family law when determining the guardianship of a child can be followed in order to appoint a litigation friend to represent the interests of protected persons at civil proceedings.

Decision of the High Court

Judge Huzaifa Mohamed who presided over the High Court proceedings and authored the unanimous decision of the Court, first addressed the requirement imposed by the Civil Court on protected persons to file a separate application under family law to appoint a legal guardian prior to filing a civil action. Giving its unanimous decision on the matter, the High Court held that where a person who lacks capacity such as a child or a protected person is a party to a civil claim, the judge presiding over the civil claim must first decide whom to be appointed as a litigation friend/litigation representative of the said child or the protected person. Judge Judge Huzaifa Mohamed rightly emphasised that compelling protected persons to first file an application under family law at a court with family law jurisdiction will result in an apparent waste of resources and time of both the courts and parties involved, which result will be diametrically in conflict with the objectives of the civil procedure.

Regarding the interpretation of Sections 87 and 429(q) of the Civil Procedure Act, it was held that Section 429(q) of the Civil Procedure Act wherein it defines the ‘legal guardian’ (Gaanoonee Beleniveriyaa) of a child for the purposes of that Act could be applied when deciding on whom to be appointed as a litigation friend of a protected person. The Judge’s reason was that Section 87(b) of the Civil Procedure Act requires a legal guardian of a child or a protected person to be appointed as a litigation friend of a child or a protected person who is a party to a court case. As such, though Section 429(q) expressly limits its definition of a ‘legal guardian’ to that of a child, Judge Huzaifa Mohamed was of the view that when Section 87(b) is read with Section 429(q), the definition of ‘legal guardian’ in Section 429(q) can also be applied when appointing a litigation friend of a protected person who has reached majority age.

Judge Huzaifa Mohamed, however, was not of the view that family law is applicable when appointing a litigation friend (Maslahathu Himaayah Kohdhey Faraaiyh) of a child or a protected person for the purposes of the Civil Procedure Act. Distinguishing a guardian (Baladhuveriyaa) appointed under family law and a litigation friend appointed under the Civil Procedure Act, the Judge noted that under family law, guardianship of a child (Kudakujjegge Baladhuverikan) is expressly reserved to the child’s father and then paternal kin of the child, whereas the definition of a ‘legal guardian’ (Gaanoonee Beleniveriyaa) under the Civil Procedure Act allows for both the mother and father of a child to be appointed as a legal guardian.

In the judgment, Judge Huzaifa Mohamed also went on to provide much-needed guidance on the procedure to be followed when appointing a litigation friend under the Civil Procedure Act and the characteristics that must be present in a person appointed as a litigation friend to protect the interests of children and protected persons in litigation.

Implications

The High Court’s judgment is the first of its kind where the issue of representing those who lack the capacity to represent themselves at court proceedings such as children and those lacking mental capacity has been decided upon.

Prior to the High Court’s judgment, the procedure to be followed to represent such incapacitated persons who are unable to represent themselves or even appoint a lawyer to represent themselves and their interests was unclear. In fact, the most closely related laws on the matter, i.e. the provisions in the Family Act and the Family Regulation, are silent on how to appoint a representative to represent the interests of incapacitated persons at court proceedings.

Following the High Court’s unanimous judgment, two things have primarily been made unequivocally clear:

1. The right of children and protected persons to be represented by a court-appointed litigation friend appointed for the particular purpose of representing them at a particular court case.
2. Courts presiding over civil suits have the jurisdiction and authority to appoint a litigation friend to represent children and protected persons that are party to the case.

Comments

The High Court’s judgment deserves to be hailed for establishing a groundbreaking and crucial precedent in safeguarding the interests of those who lack the basic capacity to fight in their own interests. Unarguably, such persons – children and incapacitated individuals, rightfully deserve the highest level of legal protection.

However, it is undeniable that the resolution of such an essential and a basic question took an exceedingly prolonged period. The resolution of the matter in the case in question spanned over several months, and tragically, during that period, the protected person in question – Mariyam Zaeema Moosa passed away while enduring the consequences of the brain damage she suffered.

In many other jurisdictions, inquiring into whether someone with capacity must be appointed to represent those unable to advocate for their own rights and interests, and who can represent such persons would be regarded as self-evident and deemed a matter of common sense. The fact that our laws have been silent on such an essential matter up until now and that such a basic question required to be extensively deliberated upon not only sheds light on the lack of legal representation afforded to the most vulnerable of our society but is an inescapable indication of the failure of our laws and systems in place to adequately protect those who need its protection the most. Surely, those of us capable of advocating for others owe a lot more to the most vulnerable.

Aishath Zaeema was represented by lawyers of CTL Strategies LLP at these proceedings.